Singer v. Townsend

| Wis. | Oct 18, 1881

Orton, J.

The answers of the garnishee, upon his examination, were to the effect that at the time he was served with the notice he had been boarding at the Townsend House, in the city of Oconomowoc, four days only, under a contract with the proprietor or proprietors of that house to pay for his board $38 per week. The garnishee was therefore not indebted at that time, for such board, to exceed four-sevenths of that amount, if he was indebted at all, or would be until the end of the week. The judgment for $46 is therefore clearly erroneous. 2 Tay. Stats., ch. 134, § 115; Wood v. Wall, 24 Wis., 647" court="Wis." date_filed="1869-06-15" href="https://app.midpage.ai/document/wood-v-wall-6600309?utm_source=webapp" opinion_id="6600309">24 Wis., 647.

There was notice by the defendant in the execution, duly served, alleging substantially that the indebtedness of the garnishee for board at the Townsend House, at the time of the service of notice upon him, if any, was jointly owing to Copeland Townsend and Elbridge Townsend, constituting the firm of Townsend & Co., and not to Copeland Townsend alone. There was no traverse of this allegation, and no issue formed upon such notice as required by the statute; but, testimony having been introduced by the defendant to prove the fact stated in the notice, without any issue being formed, such irregularity was waived.

The only testimony introduced to prove the fact stated in such notice was the written agreement of copartnership between Copeland and Elbridge Townsend, which unquestionably established the fact that they were copartners in the keeping of the Townsend House at the time such indebtedness of the garnishee was incurred for board at such house, and that said garnishee was indebted for such board, if at all, jointly to Copeland and Elbridge Townsend. This was all the evidence offered by either side, and yet the circuit judge found that such agreement' of copartnership was invalid and not tona fide, and entirely disregarded the evidence.

By the Cov/i't. — The judgment against the garnishee is reversed, and the cause remanded with direction to the circuit court to enter judgment in his favor.